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Harvey v. State

District Court of Appeal of Florida, Fifth District
Nov 20, 1986
497 So. 2d 996 (Fla. Dist. Ct. App. 1986)

Opinion

No. 86-410.

November 20, 1986.

Appeal from the Circuit Court, Brevard County, Charles M. Harris, J.

James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.


Harvey appeals from his conviction and sentence for second degree murder. Employing an "alternative sentencing plan," the trial judge sentenced him to life imprisonment under either an enhanced guideline sentence, or the habitual offender statute. We affirm the conviction but reverse the sentence.

The sentence can only be considered to be a departure sentence because the habitual offender statute has been superseded by the sentencing guidelines and is no longer viable. Whitehead v. State, 498 So.2d 863 (Fla. 1986). The trial judge listed four reasons for departing, only one of which, excessive brutality, may support a departure under certain circumstances. Lerma v. State, 497 So.2d 736 (Fla. 1986). The sentence must therefore be vacated and the cause remanded to the trial court. Albritton v. State, 476 So.2d 158 (Fla. 1985).

CONVICTION AFFIRMED; SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING.

UPCHURCH, C.J., and COBB, J., concur.


Summaries of

Harvey v. State

District Court of Appeal of Florida, Fifth District
Nov 20, 1986
497 So. 2d 996 (Fla. Dist. Ct. App. 1986)
Case details for

Harvey v. State

Case Details

Full title:KENNETH W. HARVEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Nov 20, 1986

Citations

497 So. 2d 996 (Fla. Dist. Ct. App. 1986)

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Gopaul v. State

See Fla.R.Crim.P. 3.701(b)(3); Lerma, 497 So.2d 736 (excessive brutality may support a departure sentence…

McCall v. State

Fla.R.Crim.P. 3.701(b)(3). See Vanover v. State, 498 So.2d 899 (Fla. 1986); Harvey v. State, 497 So.2d 996…